Sotomayor voices ‘sadness' in reading gender-affirming care dissent

Justice Sonia Sotomayor, the Supreme Court's most senior liberal justice, read her dissent aloud from the bench on Wednesday to stress her forceful disagreement with the court effectively greenlighting gender-affirming care bans across the country.
The justices reserve reading their dissents aloud for only a handful of cases, and Sotomayor was the first this term to do so. She spoke for nearly 15 minutes.
'The majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review,' Sotomayor wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson.
'By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims. In sadness, I dissent,' Sotomayor wrote.
The Supreme Court's six conservative justices on Wednesday all voted to uphold Tennessee's ban on puberty blockers and hormone treatments for transgender minors, rejecting the Biden administration's challenge that it amounted to unconstitutional sex discrimination.
The decision stands to impact similar laws passed in roughly half the country, which have also come under legal challenges.
The court's three Democratic-appointed justices all said the law's sex-based lines compelled a more exacting standard, known as heightened scrutiny, to determine whether the statute can survive.
Chief Justice John Roberts, writing for the majority, applied a more lenient test that only asks whether the law is rationally related to a legitimate government interest.
'That marks the first time in 50 years that this Court has applied such deferential review, normally employed to assess run-of-the-mill economic regulations, to legislation that explicitly differentiates on the basis of sex,' Sotomayor wrote. 'As a result, the Court never even asks whether Tennessee's sex-based classification imposes the sort of invidious discrimination that The Equal Protection Clause prohibits.'
The three justices also agreed the law must face the heightened test because it discriminates against transgender people. Sotomayor wrote that transgender Americans lack the political power to vindicate their interests before the legislatures passing the care bans.
'In refusing to say as much, the Court today renders transgender Americans doubly vulnerable to state-sanctioned discrimination,' Sotomayor wrote.
But while Sotomayor and Jackson went on to question whether Tennessee's law would survive under their standard, Kagan didn't join that part of the dissent. She said she would've left it for the lower courts to figure out.
'The record evidence here is extensive, complex, and disputed, and the Court of Appeals (because it applied only rational-basis review) never addressed the relevant issues,' Kagan wrote.

Try Our AI Features

Explore what Daily8 AI can do for you:

Learn with AIFact CheckingText to SpeechAI Summary

Related Articles

The Hill

34 minutes ago

• The Hill

Supreme Court ruling scrambles battle for transgender care

The Supreme Court on Wednesday delivered a substantial blow to transgender-rights advocates in upholding a 2023 Tennessee law banning gender-affirming care for minors, a decision that could have far-reaching consequences for the future of transgender health in the U.S. but whose impact won't be felt right away. 'The immediate outcome is that it doesn't change anything,' said Kellan Baker, executive director of the Institute for Health Research and Policy at Whitman-Walker, a Washington-based nonprofit. 'It doesn't affect the availability or legality of care in states that do not have bans, and it simply says that states that have decided to ban this care can do so if they survive other challenges.' Twenty-seven Republican-led states since 2021 have adopted laws that ban transition-related care, including puberty blockers, hormone therapy and rare surgeries for minors. Laws passed in Arizona and New Hampshire — the first Northeastern state to have restricted gender dysphoria treatments for youth — only prohibit minors from accessing surgeries, a provision that was not at issue before the Supreme Court. In a 6-3 decision, the high court upheld a lower court ruling that found Tennessee's restrictions do not violate the U.S. Constitution's Equal Protection Clause. The state's law, which allows cisgender children and teens to access medications that it bans for trans minors, makes distinctions based on age and diagnosis, the courts ruled, rather than sex and transgender status. Three Tennessee families, a doctor and the Biden administration, along with attorneys at the American Civil Liberties Union (ACLU) and Lambda Legal, argued the measure amounts to illegal sex discrimination, warranting heightened review. 'Having concluded it does not,' Chief Justice John Roberts wrote for the majority on Wednesday, 'we leave questions regarding its policy to the people, their elected representatives, and the democratic process.' At least 10 legal challenges to state laws prohibiting health professionals from administering gender-affirming care to minors argue the restrictions discriminate based on sex in violation of the 14th Amendment's Equal Protection Clause. The Supreme Court's ruling Wednesday could potentially weaken, in some cases, that line of attack, but it is not the only approach opponents of the laws have pursued. More than a dozen other lawsuits, including ones arguing equal protection under the U.S. Constitution, claim bans on transition-related health care for minors violate the 14th Amendment's Due Process Clause, federal disability law or provisions of a state's constitution. In May, a federal judge struck Montana's ban on gender-affirming care for youth on grounds it violated privacy, equal protection and free speech rights guaranteed by its constitution. 'This ruling allows challenges to other state bans to continue,' said Baker, of Whitman-Walker, 'and they will.' Karen Loewy, senior counsel and director of Lambda Legal's constitutional law practice, told reporters on a Zoom call following Wednesday's ruling that the civil rights organization and others challenging state bans on gender-affirming care have other options at their disposal. 'The Supreme Court did not endorse the entirety of the lower court's ruling; it did not mandate or even greenlight other bans on gender-affirming medical care, even for young people, or other forms of discrimination,' she said. 'It really is about how it viewed Tennessee's in this specific way, and left us plenty of tools to fight other bans on health care and other discriminatory actions that target transgender people, including other equal protection arguments about transgender status discrimination, about the animus-based targeting of trans people.' Loewy added that the court's ruling also left the door open to arguments based on state and federal sex discrimination statutes and parental rights, which the justices did not address Wednesday. Nearly all of the cases brought against youth gender-affirming care bans argue those laws infringe on the rights of parents to make medical decisions on behalf of their children. 'As a parent, I know my child better than any government official ever will,' Samantha Williams, the mother of L.W., a transgender teenager who was at the center of the case before the Supreme Court, wrote in a New York Times op-ed after Wednesday's ruling. The Supreme Court's determination that Tennessee's law does not discriminate based on sex also raises questions about how opponents of transition-related health care for minors will use the ruling to inform their own legal strategies. In Arkansas, the ACLU successfully argued in 2023 that the first-in-the-nation ban on gender-affirming care for minors violated the U.S. Constitution's Equal Protection Clause, as well as its Due Process Clause and the First Amendment's protections of free speech. 'We'll have to see, but it's possible that that ban could stand because the court made that decision on equal protection, as well as on other grounds,' said Lindsey Dawson, director for LGBTQ health policy at KFF, a nonprofit health policy research, polling and news organization. 'This is likely to be an area that's going to face continued litigation and is not settled at this point in time.' In a statement Wednesday, Arkansas Attorney General Tim Griffin (R) said he is 'preparing an official notification' for an appeals court detailing the implications of Wednesday's Supreme Court decision on the state's ban, which the Legislature passed — and former Republican Gov. Asa Hutchinson initially vetoed — in 2021. 'Because our law is similar to Tennessee's law, today's decision has positive implications for our case before the United States Court of Appeals for the Eighth Circuit,' he said. Montana and Arkansas are the only states whose bans on gender-affirming care for youth remain blocked by court orders, according to the Movement Advancement Project, a nonprofit group that tracks LGBTQ laws. The Supreme Court's ruling Wednesday also declined, as some court watchers had anticipated, to apply the reasoning of its earlier decision in Bostock v. Clayton County, which held that Title VII of the Civil Rights Act of 1964 shields employees from discrimination based on their sex or gender identity. Some lawsuits challenging state bans on care for minors have said the ruling should apply to contexts other than workplace discrimination. Former President Biden's administration similarly sought to use the court's reasoning in Bostock to back new nondiscrimination policies protecting transgender people in health care and sports, arguments largely rejected by conservative political leaders and courts. 'We still don't have a sole understanding of where Bostock might apply outside of Title VII, and it's going to be something that's important to watch,' Dawson said. 'It's certainly something that the Bostock court warned us about,' she said. 'In that decision, the court said, this court is making its ruling and it's quite narrow, but it's going to be for future courts to decide how this applies outside of Title VII. That remains a question mark.'

Boston Globe

35 minutes ago

• Boston Globe

In US court, due process rulings have been word for word

In orders asserting their Advertisement They pointed to language in a landmark 1982 Supreme Court ruling that upheld the rights of undocumented children to a free public education, which reads: 'even aliens whose presence in this country is unlawful, have long been recognized as 'persons' guaranteed due process of law by the Fifth and Fourteenth Amendment.' US District Judge Indira Talwani, in an order issued April 28, was the first to stress the constitutional rights of immigrants, when she prevented the government from transferring an immigrant to another jurisdiction. The next day, Judge Leo T. Sorokin wrote a nearly identical order, then a dozen other judges adopted that language in orders barring the out-of-state transfer of immigrants who filed habeas petitions. The rulings have provided critical relief for immigrants in Massachusetts at a time when many are immediately being shipped to detention facilities hundreds of miles away or deported without a hearing, according to advocates. Advertisement 'It's been heartening to see,' said attorney Benjamin Tymann, who represents several immigrants who filed habeas petitions. 'These are completely reasonable orders for judges to put in place because all they are saying is, 'OK, let's hit pause' ... and make the government make some showing on the merits of their arrest.'' Immigration lawyers have accused Immigration and Customs Enforcement of moving immigrants across the country to disrupt or delay efforts to challenge their arrests and removal from the United States, and to place them under the jurisdiction of more conservative federal courts. In one case, US District Judge Denise Casper temporarily barred the government from transferring 25-year-old Luis Fernando Olmos Ramirez while she considered his claim that ICE violated his rights when its agents arrested him in Lynn on May 24. Tymann argued there was 'no lawful basis' to arrest Ramirez, who was granted special immigrant juvenile status after coming to the United States from his native El Salvador as an unaccompanied minor in 2015 and has since lived with his father in Lynn. He has no criminal record and has an application pending for a Green card, according to Tymann. In her order, Casper wrote that relocating Ramirez to a facility outside Massachusetts 'will exponentially increase the risks that he will be further deprived of due process and unlawfully removed from the United States to dangerous conditions in El Salvador or elsewhere.' On June 10, Ramirez voluntarily dismissed his petition after an immigration judge released him on bond. But Tymann credits Casper's intervention with paving the way for his release. Advertisement 'Without the no-transfer order, he may have been sent to Texas or somewhere else,' Tymann said. US Attorney Leah Foley, whose office represents the government in habeas petition cases, acknowledged in a statement that the Supreme Court 'has established that all persons in the United States have Constitutional protections, regardless of their immigration status.' She said her office has no authority to tell ICE where to house immigrants in its custody, but immediately forwards the agency the judges' orders barring the out-of-state transfer of immigrants. A spokesperson for ICE did not respond to requests for comment about the habeas petitions and allegations that agents have made unlawful arrests. But the agency has made clear that it has worked to ICE Acting Director Todd Lyons said during a press conference last month that agents were targeting dangerous and violent criminals, but will arrest anyone they encounter who is in the country illegally. And he argued that their rights are not being violated. 'ICE doesn't just scoop people off the street and remove them,' Lyons said. 'Everyone gets due process and that is what the US attorney's office is for. It's what the immigration courts are for.' Some of the petitions before US District Court judges were filed by people who entered the country without permission, then surrendered themselves to immigration officials and had been allowed to remain free as they pursued lawful status. They allege they were arrested without probable cause or due process while driving to work or dropping their children off at school. Advertisement In some cases, petitioners allege they were leaving the Chelmsford immigration court after judges set hearings for a future date, only to be arrested in the hallways by immigration agents and told they were facing expedited removal from the country. 'What we are seeing in this country is just an assault on the rule of law,' said attorney Todd Pomerleau, whose Boston firm, Rubin Pomerleau, filed habeas petitions on behalf of five immigrants in recent weeks. One of Pomerleau's clients, Andre Damasio Ferreira, 40, was born in Brazil, came to the United States nearly 20 years ago, and lives in Everett with his wife, who is battling cancer. Their two children, 13 and 8, are US citizens. Ferreira, who works for a flooring company, was a passenger in a pickup truck being driven by a co-worker on May 30 when they were stopped by armed ICE agents who demanded to see their passports and questioned them about their immigration status, according to Pomerleau. Ferreira was arrested and is being held at the Plymouth County Correctional Facility pending removal proceedings. US District Judge William G. Young issued an order June 5 temporarily blocking Ferreira's transfer out of state, using the same language as his colleagues while stressing Ferreira's constitutional rights. Young wrote that although federal district courts don't generally have jurisdiction to review orders of removal by an immigration court, they do have jurisdiction over violations of the Constitution. The government argued in court filings on June 12 that Ferreira's arrest was lawful and urged Young to dismiss his petition. ICE agents stopped Ferreira because he looked like someone else they were targeting, then discovered he was unlawfully present in the country and had previously been removed in 2005, according to the government. The judge has yet to rule on the case. Advertisement In at least two cases, immigrants were mistakenly transferred — one to Louisiana and the other to Mississippi — in violation of judges' orders, according to court filings. The US attorney's office apologized and the petitioners were brought back to the state. Though judges have issued orders halting transfers by the Trump administration as early as January, they specifically began adopting the language reinforcing immigrants' constitutional rights after the arrest of Tufts PhD student She was arrested by masked ICE agents outside her Somerville apartment in March. By the time her lawyers filed last month, a federal judge in Vermont ordered her released, while he considers her claim that the government violated her free speech and due process rights. 'Now we are seeing a lot more detentions that violate due process rights and that's not an issue that immigration judges are usually able to address,' said Shantanu Chatterjee, a Chelsea attorney who has filed habeas petitions on behalf of several immigrants. He said more immigration lawyers are seeking relief for their clients in federal district courts. The flurry of rulings 'sends a message to everyone that Advertisement Shelley Murphy can be reached at

The Hill

42 minutes ago

• The Hill

Newsom's stock rises after clash with Trump

California Gov. Gavin Newsom (D) is seeing his name rise toward the top of potential 2028 contenders following his fight with President Trump over the unrest in Los Angeles. In the wake of immigration protests that roiled the city and prompted Trump to send in the National Guard without Newsom's approval, the governor has framed himself as the face of resistance to Trump's second-term moves, energizing Democrats and upping his 2028 primary chances in a recent Morning Consult poll. But Democrats also acknowledge Newsom faces an uphill climb as he handles the end of his tenure as governor and navigates the nation's polarized political climate. 'He's doing really well among Democrats, both in California and throughout the nation. He's getting a boost in 2025,' said John Pitney, a politics professor at Claremont McKenna College in California. 'Unfortunately for him, a presidential nomination won't happen until 2028.' Newsom, who emerged during Trump's first administration as a leader of the Democratic resistance, started the year with what appeared to be a friendlier approach to the administration and a GOP-controlled Washington. He struck a conciliatory tone as he lobbied Trump for aid after catastrophic wildfires ravaged California in the winter, and then he made headlines with the launch of a podcast hosting prominent Trump supporters. The moves were a pivot toward the center amid speculation about whether he would launch a 2028 bid. But when Trump responded to protests this month over Immigration and Customs Enforcement (ICE) raids by sending in hundreds of National Guard troops against Newsom's objections, the governor embraced the face-off. In fiery speeches, TV appearances and social media posts, Newsom has cast Trump's moves in California as executive overreach and warned of an existential fight for democracy, drawing ire from the right. He dared Trump's border czar Tom Homan to arrest him, which Trump later said he'd support. 'Trump is trying to destroy Democracy. Do not let him,' Newsom wrote in his first post on a new Substack page this week. The protests and the clash between the leaders have carried political risks for both sides of the aisle, but they've also intensified the spotlight on the term-limited governor long suspected of having national ambitions. Polling on 2028 is sparse. But in a Morning Consult survey taken June 13-15, as the LA protests were dying down, 11 percent of Democrats and Democratic-leaning independents said they would back Newsom in a 2028 primary, up from 5 percent who said the same in March. Former Vice President Kamala Harris was still the clear front-runner, with 34 percent support, but her backing ticked down 2 points from March — while Newsom overtook both former Transportation Secretary Pete Buttigieg and Rep. Alexandria Ocasio-Cortez (D-N.Y.). Newsom has so far stayed quiet about the speculation and his future plans. But he has signaled the door is open to a potential presidential run. 'I'm not thinking about running, but it's a path that I could see unfold,' he told The Wall Street Journal amid his latest feuding with Trump. Pressed on the question by guest Dr. Phil on the 'This is Gavin Newsom' podcast earlier this month, the governor said 'fate will determine that' and noted that he's got his 'hands full' for the next couple years. Democratic strategist Maria Cardona stressed that Newsom's resistance to GOP policies is part of the job description as governor of a big blue state like California — and not necessarily an 'auditioning' for higher office. Still, she said his public sparring with Trump about the protests 'certainly doesn't hurt' his future prospects. 'It highlights and it gives faith to the base of the Democratic Party, independents, frankly, also to common-sense Republicans … that there is fight in the opposition, that there are people willing to confront Trump and go toe to toe with him,' Cardona said. Newsom's high-profile resistance also comes at a key point for the party, as Democrats regroup after a devastating election last year, noted California Democratic strategist Steven Maviglio. 'Democrats are desperate for a leader, and I think he's had his 15 minutes, and that helped him rocket to the top of the latest polls,' Maviglio said. But a swell of energy three years before an election would be hard for any prospective candidate to maintain, experts noted, and Newsom faces some unique hurdles if he ends up pursuing the presidency. For one, California has increasingly become a target of the right, and the protests have given Republicans scenes of chaos to point to as they argue that Democrats are soft on crime and immigration. 'It's both a strength and a weakness … California is 20 percent of the country, so he's got a lot of name ID. He's a major national figure, just by virtue of the fact that he's the governor of a huge state,' said Matt Bennett, Democratic strategist and co-founder of centrist think tank Third Way. 'It's a weakness because California is perceived, fairly or not, as being very blue, very liberal. And he was mayor of San Francisco, which is even more blue and more liberal. So I do think he's got things in his past that are going to make it difficult for him to escape the stereotypical view of Democrats,' Bennett said. The protests are also unlikely to be Newsom's last brush with Trump, and the governor may need to further tweak his approach to help his state get what it needs, noted Pitney, the professor at Claremont McKenna College. 'Whether it's another set of wildfires, an earthquake, mudslides, something bad is going to happen. We know that that is part of living in California. And when that happens, we're going to need federal help, and at that point, he's going to have to turn on the mute button,' Pitney said. To that point, though, some are also questioning whether Newsom's effort to shift gears between conciliatory and confrontational with Trump could be a political liability moving forward. 'His weakness is that he's been all over the map in terms of his relationship with Trump,' Maviglio said. 'He tried to be the accommodating moderate for a few months, and that wasn't working. So now he's become the anti-Trump, and he gained steam from that. But this is precisely why he's not trusted by the progressive wing of the party or the moderate wing, because he's all over the map, and it's been inconsistent.' Bennett, on the other hand, shrugged off concerns about the shift in tone, arguing that Trump is so 'mercurial' in his own right that those engaging with him are 'going to be [as] all over the map as he is.' 'I think that Newsom's fight with Trump is good for him and his standing with the party. He has been resolute and tough, and I think that's probably helping him,' Bennett said. Yet another complication, though, is that Trump won't be on the ballot in 2028 — and opposition to him may not end up as a defining issue. If Newsom does decide to run, he'd have to navigate that new territory, while also dealing with a potentially tricky gap between his exit from the governor's mansion and the election. 'It's always a tough balancing act for governors and others, especially governors who tend to be term limited … to figure out what to do with that awkward year between them leaving office and running for president, and how do you stay relevant?' Bennett said. 'That is a challenge for anyone who's out of office when they go to try to run for president, and it's tough to do.'